Contracts FAQ 2
What constitutes "public construction" under the bid law?
The term “public construction” is not defined in the state bidding statutes. One commentator has stated that public construction consists of the following:
(A)ctivities concerned with the erection of buildings and bridges, the construction of streets and highways, and other similar public improvements which require the combining of materials, supplies and labor. Mere maintenance and other public works which do not involve the actual combining of materials and labor with a definable end result would unlikely constitute public construction.
Natkins, Smith & Van Swearingen, Public Construction in Wisconsin, p. 50 (1985).
In a 1997 decision, the Court of Appeals addressed the issue of what constitutes a “public work” project within the meaning of the prevailing wage rate statute, then Wis. Stat. sec. 66.293, (later renumbered as sec. 66.0903). Elliot v. Morgan, 214 Wis.2d 253, 571 N.W.2d 866 (Ct. App. 1997). The court held that in determining whether a project constitutes a public work, “the pertinent factors to consider include the nature and the character of the project, the ownership, use and maintenance of the project, and whether the work is being done for the appropriate [sic] municipality.” Id., 571 N.W.2d at 871.
In past League opinions the term “public construction” has been interpreted to include:
- remodeling or renovating municipal buildings (Contracts 338);
- a landfill remediation project requiring the construction of a landfill cover (Contracts 357);
- a municipal golf course expansion project (Contracts 352);
- the installation of fixtures in municipal buildings (Contracts 340);
- repairs to municipal buildings (Contracts 340); and
- construction of a memorial fountain using federal grant money (Contracts 320).
Various court decisions and League opinions have interpreted public construction to not include:
- the purchase of equipment or materials, unless the materials are earmarked for a particular construction project (Knuth v. Fidelity & Casualty Co., 275 Wis. 603, 83 N.W.2d 126 (1975);
- the reseeding of a terrace which is not part of a current construction project (Contracts 341);
- sandblasting and recoating of the interior of a water tower (Contracts 332); and
- leveling and grading of an industrial park site (Contracts 298).